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September 9, 2004

Gaining perspective

I am back in the Buckeye state and so very grateful to Congresswoman Maxine Waters and her wonderful staff for allowing me the opportunity to participate in today's panel discussion on federal sentencing at the Congressional Black Caucus Foundation's 34th Annual Legislative Conference in Washington DC (background here).

As I anticipated, I learned a tremendous amount from my fellow panelists and also from the audience on a range of critical issues. Much of the discussion focused on federal mandatory minimum sentencing — and included the exciting news that Congresswoman Waters will soon introduce a bill proposing to eliminate certain mandatory penalties in some non-violent drug cases. But the discussion also canvassed other federal and state sentencing issues. For example, I was disconcerted to hear about New Jersey's severe racial disparities in its prison population from New Jersey's Attorney General Peter C. Harvey, but I was encouraged to hear that New Jersey has a new commission now reviewing the state's sentencing policies and practices. (Background on New Jersey state sentencing realities can be found here, and details about the new New Jersey commission and its challenges are here and here.)

Though I could go on at length about the particular insights shared by other panelists — so many important points were made by The Honorable Ruben Castillo, The Honorable Terry Hatter, Julie Stewart, and Nkechi Taifa — the collective insight I took away from the event concerned how different the sentencing world and the possibility for meaningful reform looks depending upon one's experiences and perspective.

Sadly, I got the feeling that perhpas naive optimism fuels my own belief that Blakely has created an historic moment for historic rethinking of modern sentencing policies and practices. Both the substance and tone of many comments from those working in DC left me with an impression that meaningful sentencing reform seems much more possible when considered from the ivory tower than from inside the Beltway.

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Comments

I've been following your blog since the end of June. You may indeed be overly optimistic about the change that Blakely will produce in the sentencing issues in our country. With that said, isn't it exactly your type of intellectual optimism mixed with action of those on the ground that allows the wheels of change to begin? It seems in every instance where injustice is overturned that it was harder, longer and more difficult than anyone anticipated, yet it often began with "overly optimistic" ideal that was worth the enormous effort. Please keep up your efforts in this blog.

Posted by: Jennifer Christensen | Sep 10, 2004 5:35:44 PM

Like Prof. Berman, I fear Blakely has not finally alerted the world to the USSG's gross injustices, but rather that I am a naive optimist. If left to choose between the naivite of (a) the Constitution or (b) that Congress faithfully and fairly acts in our best interests (rather than our likely votes) -- or that Congressional intent controls constitutional optimism -- I will take constitutional naivite every time.

Fact: my clients plead guilty (or, rarely, blow trial) knowing Prosecution Part Two begins when a United States Probation Officer (USPO) prepares a Presentencing Investigation Report (PSI, or PSR). Based almost entirely on post-conviction interviews with law enforcement -- including and especially the USA's prosecutors -- the PSI reflects the alleged "relevant conduct" felonies our defense must affirmatively disprove or, if before a favorable judge, must defend on a preponderance standard.

Objections to the PSI almost invariably lead to USPO addendums that, justifying "on Government information," are exactly the same as the original report. Then, based on that PSI, and no matter the offense pled guilty, we proceed to a bench trial by preponderance on the PSI's relevant conduct allegations. Clearly, that PSI serves in some way as a Judicial Information of aggravated felonies charged for sentencing.

Consider these examples. In example one, client pled to minor role in securities fraud (a pump-and-dump, where he was one of dozens in the boilerroom). Client (a) was ordered to pay just under $18,000 in restitution; and (b) agreed the attributable loss fell between $40,000 and $69,999. Per his PSI, however, we now defend against a sentence based on Government assertions (contained in the PSI, over our objections) of a $5m total loss with $480,000 attributable to client. This comes after USA agreed the client owed a total of $18k restitution for his unlawful securities sales, and accepted a plea for total loss under $70,000. The reason USA pushed right past our Plea Agreement? USA would have been forced to jury trial to convict my guy of a half-million dollar fraud -- after the PSI, that trial is before the bench, by a preponderance of the evidence standard.

Had this client not pled guilty, however (and skipping some trial joinder problems), he would serve two to three extra offense levels (well over one extra year with loss enhanced by $400k) by losing Acceptance of Responsibility. His best bet was accepting a sentencing bench trial by preponderance, and begging the court's mercy.

Example 2: client pleads to transporting marijuana, but his plea to pounds becomes "kilos" in the PSI, along with a manager enhancement we vigourously oppose (and may yet have to bench try at a Fatico hearing). After objecting to the grossly deficient PSI (using Blakely, I add, and winning revision only because J. wants to avoid ANOTHER reversal), we get the AUSA to conceded on the record our calculation of Total Offense Level and Criminal History Category (CHC). A new USPO contacts law enforcement agents and returns a "revised" PSI, though, that not only repeats the original draft's (grossly deficient) USSG calculation -- over AUSA's concession in open court -- but this time strips our guy of Acceptance of Responsibility. Now we must prove to the court, over the USPO's indignant Revised PSI, that our guy pled to what he actually did and shouldn't be punished for street detectives' wholly unproven allegations.

Remember also that, even if the defense wins objections to the PSI, the whole file goes to the Federal Bureau of Prisons (BOP). No matter the instant offense, BOP designators scour the PSI's "Offense Conduct" section for mention of violence, firearms, mob or gang activity, or other security-enhancing details. Whether such allegations even bear on the instant inmate, BOP locks him/her down based on the worst picture painted by the PSI -- the Government's second crack at felony prosecution, and the street cop's last chance to include information (s)he just couldn't take to court.

Interestingly, it is academic naivite that might here save us. While the academy and the Supreme Court banter about justice, though, my guys go to prison based not on their admitted wrong-doing, but on whatever the Government says more likely than not happened. Moreover, depending on how the Supreme Court dictates retroactivity, some of those inmates stand to serve unconstitutionally long sentences because trial counsel didn't have the ambition or wherewithal to fight the PSI, and the USSG -- or that they had the misfortune of being prosecuted too long before Blakely's progeny falls.

I stand defiantly naive that the Constitution prohibits this, and also prohibits express punishment for acquitted conduct. I also hope other practitioners share as many USSG horror stories as possible, so perhaps SOMEONE will ask about the real effects of the USSG's "real offense" sentencing.

Posted by: Jay Hurst | Sep 12, 2004 9:08:23 AM

It seems to me that unless and until we get back to the notion that the government is given its power by the people, these problems will persist. The "government" seems to believe, and enough citizens agree, that citizens accused of a crime are the enemy and need to be kept in their place by the government's authority, which BTW, is no longer bound in practice by the Constitution or Bill of Rights. Mr. Hurst's plea at the end of his comment suggests to me that he too thinks that if people are made aware of the government's handling of the people's business, they might be of a mind to once again seek justice, instead of whatever it has devolved into currently.

Posted by: Jeannie | Sep 12, 2004 4:50:09 PM

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